10 things you may not know about unfair dismissalSep 10, 2022
- The laws relating to unfair dismissal attempt to balance the needs of the business and the needs of employees, and establish procedures for dealing with unfair dismissal that are quick, flexible and informal, and address the needs of employers and employees. The aim is to ensure that a “fair go all round” is given to both sides.
- The employee must have completed at least 6 months with the employer, or 12 months if the employer is a “small business employer”. This is known as the “minimum employment period”.
- The “minimum employment period” is the period of continuous employment with the employer – but does not include any periods as a casual employee.
- Employees earning more than $162,000 (“high income threshold”) cannot make unfair dismissal claims unless they are covered by a modern award or an enterprise agreement.
- There are 4 parts to unfair dismissal:
- You have been dismissed from your employment – that is, you were terminated, or you resigned but were forced to do so because your employer’s conduct;
- The dismissal was harsh, unjust or unreasonable;
- The dismissal was not consistent with the Small Business Fair Dismissal Code; and
- The dismissal was not a case of genuine redundancy – that is, your job no longer needs to be done by anyone else, and the employer compiled with the requirements under the modern award or enterprise agreement.
- There is a list of criteria set out in the Fair Work Act for considering harshness.
- If the Fair Work Commission considers there has been an unfair dismissal, then it could order the employee’s reinstatement, or payment of compensation.
- An unfair dismissal application must be made to the Fair Work Commission within 21 days after the dismissal took effect (unless a further period is granted by the FWC).
- The FWC may order costs to be paid by a party if it believes that the party acted unreasonably in connection with the conduct or continuation of the matter.
- A lawyer acting in an unfair dismissal claim or defence must ensure that there are reasonable prospects of success in the matter.
Note that there may be certain conditions, limitations, and exclusions in the above sections of the legislation. Click on the links to find out more.
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